Ellington v. Director Of Corrections et al

Filing 23

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 04/12/10 recommending that this action be dismissed without prejudice. Referred to Judge Morrison C. England Jr. Objections due within 21 days. (Plummer, M)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 This action is referred to a United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1)(B), Local General Order No. 262, and E.D. Cal. L.R. ("Local Rule") 302. 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA MARCUS RUBEN ELLINGTON, Plaintiff, vs. DIRECTOR OF CORRECTIONS, et al., Defendants. / Plaintiff is a state prisoner proceeding without counsel in this civil rights action filed October 26, 2009. On December 23, 2009, this court dismissed plaintiff's complaint with leave to file an amended complaint within thirty days, based on the failure of the complaint to demonstrate that plaintiff had exhausted his administrative remedies relative to an alleged 2007 assault. (Dkt. No. 16.) Plaintiff was informed that "failure to file an amended complaint in accordance with this order may result in the dismissal of this action." (Id. at 5-6.) On February 12, 2010, following reassignment of this action to the undersigned magistrate judge,1 the court granted plaintiff an additional twenty-eight days within which to file an amended complaint in FINDINGS & RECOMMENDATIONS No. 2:09-cv-2985 MCE KJN P 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 compliance with the court's December 23, 2009 order. (Dkt. No. 21.) The deadline has passed and plaintiff has neither filed an amended complaint nor otherwise communicated with the court. The court will therefore recommend dismissal of this action. See Local Rule 110 ("Failure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions"). Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. 636(b)(l). Within 21 days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: April 12, 2010 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE elli2985.f&r 2

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